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New Recordkeeping Burden for Employers under Genetic Information Law (GINA)

by: Emily S. (Blumenthal) BornaJackson Lewis LLP - Atlanta Office

February 10, 2012

Previously published on February 9, 2012

The Equal Employment Opportunity Commission has extended its recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act to entities covered by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). The EEOC’s final rule will become effective on April 3, 2012.

Title II of GINA prohibits employment discrimination against job applicants, current and former employees, labor union members, and apprentices and trainees based on their genetic information. This prohibition applies to the following entities:

employers with at least 15 employees,

employment agencies,

labor unions,

joint labor-management training programs, and

federal sector employers.

The new recordkeeping rule requires covered entities to retain all employment and personnel records in the same manner currently required under Title VII and the ADA. Accordingly, covered employers should segregate any medical or genetic information about employees from other personnel records and make them accessible only to persons with a business need to see such information. This recordkeeping requirement does not require an employer to create any new documents. A covered entity must preserve all records relevant to a GINA charge until the charge is resolved with some final disposition (as with any records relevant to any EEOC charge).

GINA became effective on November 21, 2009. The latest available information from the EEOC (for fiscal year 2011) shows 245 new charges were filed under GINA. The number of charges filed with the EEOC under the ADA during the same period is 25,742.

A number of states, including Connecticut, Illinois, and Oregon, also have laws prohibiting genetic discrimination in the workplace.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.